UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EARL BANKS,

Plaintiff,

 Civil Action 2:11-cv-944

v. Judge Michael H. Watson

 Magistrate Judge E.A. Preston Deavers

DETECTIVE GINA GRAY, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff’s Request for Initial Screening of Complaint is GRANTED. (ECF No. 5.) 

Thus, this matter is before the Court for the initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608

(6th Cir. 1997). Having performed the initial screen, for the reasons set forth below, the

undersigned RECOMMENDS that the Court DISMISS this action for failure to state claim

upon which relief can be granted. 

I.

Plaintiff, Earl Banks, a state inmate who is proceeding with out the assistance of counsel,

seeks to bring this action under 42 U.S.C. § 1983 against the following Defendants: Cleveland

Police Department detectives Gina Gray, E. Marie, and John Vinson in both their individual and

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personal capacities; the Cleveland Police Department; and the City of Cleveland. Plaintiff

asserts that Defendants acted under the color of state law to deprive him of his rights “under both

the Eight Amendment of the United States Constitution and under 42 U.S.C. § 1983.” (Compl. ¶

8, ECF No. 3.) 

According to the Complaint, Detective Gray took a statement from the victim of a

burglary and theft that a state trial court later found Plaintiff guilty of committing.1 Detective

Gray, Detective Vinson, and Detective Marie signed the police report. Because the same badge

number was written beside both Detective Gray and Detective Marie, Plaintiff speculates that

they are actually the same person. He therefore concludes that the Detective Gray falsified the

police report and that Detective Vinson is complicit in this falsification. 

At trial, Plaintiff learned that Detective Gray was the victim’s Aunt. He opines that

Detective Gray should have consequently removed herself from the investigation. Plaintiff

maintains that the Cleveland Police Department and the City of Cleveland failed to ascertain that

Defendant Gray adhered to Ohio law and departmental policies. Plaintiff asks this Court to

award him nominal, compensatory, and punitive damages, as well as costs and fees. 

II. 

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

1

In 2010, Plaintiff was charged with one count of burglary and one count of theft. He

waived his right to a jury trial, and the case was tried to the state court. The state trial court

found Plaintiff guilty of burglary and an amended count of misdemeanor theft, sentencing him to

a three-year prison term. On November 3, 2011, the Ohio Eighth District Court of Appeals

affirmed the trial court’s convictions. State v. Banks, No. 96535, 2011 WL 5326143, at *1 (Ohio

App. 8 Dist. Nov. 3, 2011). 

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assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A

(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any

portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e)

and § 1915A require sua sponte dismissal of an action upon the Court’s determination that the

action is frivolous or malicious, or upon determination that the action fails to state a claim upon

which relief may be granted. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards

to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard

does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient. 

2

Formerly 28 U.S.C. § 1915(d). 

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Ashcroft v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of

the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). 

Facial plausibility is established “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In

addition, the Court holds pro se complaints “‘to less stringent standards than formal pleadings

drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010 WL

1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). 

The Court is not required, however, to accept as true mere legal conclusions unsupported by

factual allegations. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). 

III.

Even construing Plaintiff’s Complaint liberally, the undersigned concludes that Plaintiff

has failed to meet the pleading requirements for a cause of action under 42 U.S.C. § 1983. In

order to plead a cause of action under § 1983, Plaintiff must plead two elements: “(1) deprivation

of a right secured by the Constitution of laws of the United States (2) caused by a person acting

under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534

(6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006))

(emphasis added). See also Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 129 S.Ct. 2308,

2318 (2009) (explaining that § 1983 is a federal civil rights statute “which gives a cause of

action to those who challenge a State’s ‘deprivation of any rights . . . secured by the

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Constitution.’”). 

Here, Plaintiff has failed to sufficiently plead the deprivation of a right secured by the

Constitution. His argument that Defendants’ actions violated his Eighth Amendment rights is

not well taken. The Eighth Amendment, which applies to the States through the Fourteenth

Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.” The facts alleged here fail to establish that

Defendants have caused a deprivation of Plaintiff’s rights under this or any other Amendment. 

Because Plaintiff has failed to sufficiently plead a claim with an arguable basis in law

over which this Court has jurisdiction, the undersigned RECOMMENDS that the Court

DISMISS this action pursuant to § 1915(e)(2) and 1915A. 

IV. 

Plaintiff’s Request for Initial Screening of Complaint is GRANTED. (ECF No. 5.) 

Having performed the initial screen, the undersigned RECOMMENDS that the Court DISMISS

this action in its entirety under §§ 1915(e)(2) and 1915A for failure to state claim upon which

relief can be granted. 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

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Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

IT IS SO ORDERED. 

DATE: March 14, 2012 /s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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